Employment Law in Practice
Disciplinary meetings - top tips surviving disciplinary meetings
Disciplinary meetings usually relate to either conduct or capability issues. Although disciplinary procedures do not always result in a dismissal, our experience as employment solicitors suggests that most do, so it is safest to prepare for the worst case scenario.
Capability/performance and conduct are two of the five potentially fair reasons for dismissal and for an employer to avoid a successful claim for unfair dismissal they must initially establish that the employee falls within one of these categories.
- Conduct
Conduct can be in respect of issues such as drunkenness at work, dishonesty, breach of health and safety or refusing to obey instructions.
- Capability or qualifications
This category deals with issues of general ability, poor performance whether generally or one instance that could constitute a fair dismissal, ill heath and general aptitude.
The first place to look as to your rights is the employment contract and employee handbook. The employer, throughout, must act reasonably and fairly, and the procedure must also reflect this.
The employer should have, by way of the employment handbook, listed the procedure for disciplinary meetings. It is also likely that the employer has given examples of what is deemed misconduct and gross misconduct. Although the list in the employment handbook is not exhaustive it is indicative of the employer's perspective as to disciplinary matters.
The Procedure
The procedure should be fair and reasonable and your contract of employment may set out the procedure your employer should follow, or it may be set out in the employment handbook. If the employer breaches the rights set out in your employment contract, you potentially can make a claim for breach of contract in the Employment Tribunal. If the procedure is in the handbook, you may need to consult an employment solicitor to ascertain whether that part of the handbook forms part of your employment contract.
You are entitled to take a colleague or trade union representative to the meeting for support and note taking, but not to answer the questions on your behalf.
A brief flavour of what you should expect is:-
- The employer should provide details, reasons in writing as to the disciplinary action with good notice prior to the disciplinary meeting. This letter should have enough information to detail your alleged poor performance or misconduct and its consequences, so that you can prepare a reply or an explanation at the meeting. If you are not given enough notice before the meeting to prepare a defence you should give a written request to rearrange the meeting.
- Unless you are suspended the disciplinary meeting should be held before any action is taken.
- The employer in the meeting will explain the complaint and give you an opportunity to answer the case against you.
- Following the meeting the employer should provide the decision, with reasons, and notify you as to your right to appeal and to whom the appeal should be addressed.
In respect of poor performance, it is usual for the employee to be given time to improve with performance objectives and supervision over a protracted period of time, depending on the employee's seniority.
Employers must ensure that their decision is within the range of "reasonable responses" test i.e. would another reasonable employer have acted in a similar manner.
During the meetings, it is usual practice for the employer to take notes, as a contemporaneous record. If the employer supplies his version of the meeting and you believe that it is inaccurate there should be no difficulty for you to provide your amended copy for the employer's agreement. It is good practice for you, or your representative at the meeting, to also take a contemporaneous record.
If the employer does not follow the correct procedure it is possible to have an enhanced award at the Employment Tribunal.
The Appeal
As an employee you must be given a right to appeal any decision made in a disciplinary procedure. The appeal is usually held by more senior management and should not be heard by the same person who undertook the original procedure. In smaller companies it may be heard by someone external, such as an employment solicitor or HR consultant. You will be given the opportunity to put forward your explanations and state your case. The emphasis of the appeal hearing is to make sure that the disciplinary process was carried out correctly and the decision made was without error. The appeal meeting will allow you to provide new evidence and to question incorrect procedural errors.
N.B The whole process should be viewed as an evidence gathering exercise. (Claim is as Good as the Evidence - The First Rule)